2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-2009

Li v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3974

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3974

___________

HUA LI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, 

 Respondent

____________________________________

On Petition for Review of an Order 

of the Board of Immigration Appeals

Agency No. A79 429 935

Immigration Judge: Donald Vincent Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 04, 2009

Before: MCKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed: August 27, 2009)

___________

OPINION

___________

PER CURIAM

Hua Li petitions for review of a Board of Immigration Appeals (“BIA” or

“Board”) decision denying her motion to reopen her immigration proceedings. We will

deny the petition for review.
 In general, a motion to reopen must be filed no later than ninety days after the date 1

of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). The general rule is

subject to some exceptions, such as for changed country conditions, if proffered evidence

is material, was not available, and could not have been discovered or presented at the

earlier hearing. 8 C.F.R. § 1003.2(c)(3)(ii).

2

Li originally applied for asylum and other relief based on threats she received for

refusing to marry a government official in China. The Immigration Judge (“IJ”) denied

relief. The BIA affirmed without opinion on November 17, 2004. Years later, on

January 5, 2007, Li filed a motion to reopen and to file a successive asylum application,

claiming that she had married a man (who later became a permanent resident of the

United States) in a traditional ceremony in 2004, and registered the marriage in New York

in 2005. The couple had a child on August 6, 2005, and Li was pregnant with a second

child at the time she filed the motion to reopen. She asserted that the motion was exempt

from the ninety-day time restriction on motions to reopen because her motion was based

on changed country conditions in China and based on facts not previously available to

her. Specifically, Chen contended that she would likely be persecuted as a violator of the

one-child rule of the family planning law, because enforcement of the law by forcible

sterilization or abortion was becoming more frequent in Fujian Province. On September

10, 2007, the BIA denied the motion. The Board found that Li had “not submitted

reliable and previously unavailable evidence to establish that reopening is warranted in

this case,”and thus the motion was time-barred because it did not fall within any

exceptions to the time limitation.1
 The Government disputes this characterization, noting that the Second Circuit simply 2

found the evidence warranted a remand, and, that on remand, the BIA concluded that the

alien had not shown that conditions in China had changed materially since her asylum

hearing in 1996. Respondent’s Brief at 17, n.8 (citing Matter of S-Y-G-, 24 I. & N. Dec.

247 (BIA 2007)).

 The document, at A.R. 73-75 also appears to have a 2001 fax date. 3

3

Li argued in her motion to reopen, citing Shou Yung Guo v. Gonzales, 463 F.3d

109, 112-13 (2d Cir. 2006), that the United States Court of Appeals for the Second

Circuit had recognized new evidence showing a change in country conditions–that is, a

new policy in Fujian Province with regard to enforcement of birth control laws on couples

whose children were born abroad. A.R. 22. Li argued that reports had earlier shown that 2

special privileges were extended to returning overseas couples with children born abroad,

A.R. 28-29; but that such was no longer the case. 

In support of her motion to reopen, Li included a number of documents. See A.R.

41, List of Documents in Support of the Motion. The Board indicated that many of the

documents Li produced had already been considered and rejected in Matter of S-Y-G-, 24

I. & N. Dec. 247 (BIA 2007), and also commented on specific documents as follows:

• The “Response of the Administrative Office of the National Planning Committee

to the Fujian Province Population . . .” was unreliable, as the original Chinese

version of the document, although dated 2006 had a fax date of March 12, 2005.3

The Board also found that it was materially similar to a document produced in 

S-Y-G-, which also addressed “the reproductive behaviors of the Zheng, Yu He

couple,” and which the Board had determined did “not establish that the

respondent himself would be found to violate family policies, or that if he was, his

punishment would rise to the level of persecution.” A.R. 3.

• The 1999 Chang Le City Question and Answer Document was unauthenticated,
4

and could have been produced at Li’s 2003 hearing. The Board also noted that it

had been considered in S-Y-G- and found not to show that the respondent would

face persecution.

• The affidavit of demographer Dr. John Aird was not based on first-hand

knowledge and had been rejected in Matter of J-W-S-, 24 I. & N. Dec. 185, 189

(BIA 2007).

• Two news articles recounting forced abortions and/or sterilizations in Linyi,

which is in Shandong province, did not discuss problems in Li’s home area.

• The testimony of Harry Wu before a United States House of Representatives

committee did not provide “any specific information regarding aliens returned to

Fujian Province after the birth of multiple children abroad.” A.R. 4.

• State Department information from 2004 and 2005 did “not contain evidence that

someone in the respondent’s position and from her area would be subject to

forced sterilization or other persecutory acts upon return to her home province.” 

Id..

• “[T]he remaining documents submitted by the respondent . . . do not . . . suffice to

meet her burden of proof for reopening under Matter of S-Y-G- . . . .” Id.

Li also alleged that she asked her mother-in-law to inquire with the villagers’

committee in Li’s hometown, and the mother-in-law was told that Li would not be

excluded from family planning procedures if she returned to China. A.R. 59. The Board

found that Li’s statement concerning what her mother-in-law learned had limited

evidentiary value, as there was no statement from the mother-in-law, and no indication

how family planning officials learned that Li had given birth. Based on these

conclusions, the BIA found that the evidence did not establish changed circumstances in

China sufficient to support a reopening of the proceedings. Finally, the BIA rejected Li’s

argument that she could file a successive asylum application that would not be subject to
 The petition for review was stayed pending the Court’s decisions in several similar 4

cases. Those cases have been decided, and the parties have filed supplemental briefs

addressing those decisions.

5

the changed country conditions requirement of an untimely motion to reopen. Li filed a

timely petition for review.4

We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We

review the ultimate denial of a motion to reopen for an abuse of discretion. Liu v.

Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). We uphold the BIA’s factual

determinations if they are supported by substantial evidence. Korytnyuk v. Ashcroft, 396

F.3d 272, 285 (3d Cir. 2005).

As an initial matter, we note that Li’s argument that she may file a successive

asylum application without regard to the limits applicable to a motion to reopen is

foreclosed by our decision in Liu, in which we held that, after completion of removal

proceedings, an alien must file an asylum application in conjunction with a motion to

reopen and must meet the time and numerical limitations on motions to reopen. 555 F.3d

at 152. We also reject Li’s argument that her case is similar to Zheng v. Attorney

General, 549 F.3d 260, 269-71 (3d Cir. 2008), where we vacated the denial of motions to

reopen based on the BIA’s failure to discuss the evidentiary record. In its decision here,

the BIA specifically referred to almost every piece of background information provided

by Li, concluding that this evidence was inapplicable because it did not address the

treatment of Chinese nationals returning from abroad with United States children. 
 The Consular Information Sheet states in part, “If one or both parents of a child are 5

PRC nationals who have not permanently settled in another country, then China regards

the child [born abroad] as a PRC national and does not recognize any other citizenship the

child may acquire at birth, including U.S. citizenship.” A.R. 98. We agree with the

Government that the document does not discuss China’s family planning policy, nor does

it indicate that a Chinese national who returns to China with children born abroad will be

persecuted. As to the 1997 Letter, we agree with the Government that, even assuming the

BIA did not consider it, no remand is necessary, as the Letter could have been produced

at Li’s earlier asylum hearing.

6

Li argues, specifically, that the BIA ignored two pieces of evidence: (1) the State

Department’s 2003 Consular Information Sheet; and (2) a 1997 “Letter in Response to the

Issue of Identification of Nationality.” As the Government has noted in its supplemental

brief, the Consular Information Sheet states at the top that it “is current as of today, Thu

Jan 22 11:51:39 2004.” Thus, although the document bears a date of May 29, 2003 at the

beginning of the text, the BIA may have included it in its discussion of “State Department

information from 2004 and 2005.” Further, the BIA also stated that the “remainder” of

Li’s documents did not establish that reopening was warranted. The BIA thus could have

included the Consular Information Sheet, and the 1997 Letter in this catch-all category. 

5

Although we have remanded where the Board has “fail[ed] to discuss most of the

evidentiary record,” see Zheng, 549 F.3d at 269; we do not require the Board “to write an

exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290 F.3d

166, 178 (3d Cir. 2002). The BIA here examined the background evidence submitted and

determined that it did not address the facts of Li’s case–the treatment of Chinese nationals

returning from abroad to Fujian Province with United States citizen children. Substantial
7

evidence supports the BIA’s conclusions.

For the foregoing reasons, we will deny the petition for review.